| In recent years,with the rapid development of finance lease industry in China,disputes arising from finance lease business also occur from time to time.Finance lease,as an independent transaction mode,has the characteristics of "financing" and "financing".The lessor has the ownership of the finance lease during the term of contract performance.When the lessor’s rights are violated,the lessor can exercise the right of withdrawal based on the ownership.In practice,because the rights of lessors are vulnerable to infringement,the right of withdrawal of financial leasing lessors,as a relief measure for lessors to protect their own interests,is particularly important in judicial practice and legal norms.Academic circles to the property of the lessor to recall right has been controversial,mainly has returned to the original,creditor’s right,the right to mortgage is similar to the special rights of three.Because it is an extension of the ownership right,on the premise of financing lease termination of the contract and request others to exercise,so belong to return the original items claim,can exercise when the lessee default or bankruptcy.On the basis of clarifying the basic theory of lessor’s right of withdrawal,this paper analyzes the norms of lessor’s right of withdrawal in China’s current laws,which focus on China’s current "Civil Code","Judicial Interpretation of financial leasing","Enterprise Bankruptcy Law" and "Judicial Interpretation of Bankruptcy Law（II）",but the provisions are relatively simple.Then through the case analysis of the status quo of the judicial practice of lessor’s right of withdrawal,it is found that there are fewer cases,lessor can exercise the right of withdrawal in a few cases of default,the lessor exercise the right of withdrawal in bankruptcy cases is easy to cause disputes.It is not difficult to find the deficiency of the lessor’s right of withdrawal system in China by combining the judicial practice and the status quo of legal norms.It is mainly manifested in the defects in the specific conditions of the right of withdrawal in breach of contract,the unbalance of the protection of the interests of the subject in the recovery of bankruptcy,the unknown restrictions on the exercise of the right of withdrawal,and the defects in the exercise of the right of withdrawal.In order to better guarantee the exercise of lessors’ right of withdrawal,the rights of lessors should be effectively protected in judicial practice and the interests of all parties involved in financial leasing should be balanced.Based on the basic theory of lessor’s right of withdrawal,by comparing overseas legislative provisions,referring to Chinese scholars’ suggestions on legislative improvement and combining China’s judicial practice,it is suggested to improve the current financial leasing lessor’s right of withdrawal system from the following four aspects.First of all,by improving the specific circumstances of the exercise of the right to recover from breach of contract,flexible provision of legal rent default standards,expanding the scope of autonomy of the parties to the right to recover from breach of contract,optimize the specific circumstances of the exercise of the right to recover from breach of contract;Secondly,clear the principle of exercising the option of the bankruptcy administrator and the liquidation obligation of the lessor after exercising the right of bankruptcy recovery,balance the interests of all parties in the bankruptcy recovery;Thirdly,it makes clear that the ownership is not registered in financial leasing,the bankruptcy administrator chooses to continue to perform the contract,and adds the restriction conditions as the exercise of the right of recovery;Finally,it makes clear the way of self-retrieval which allows the lessor’s right of withdrawal and the way of public retrieval which refers to the special exercise procedure of security right. |
